Filed 9/23/20 P. v. Salas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076686
Plaintiff and Respondent,
v. (Super. Ct. No. SCD282084)
THOMAS SALAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Yvonne Esperanza Campos, Judge. Appeal dismissed; matter is transferred
to the Appellate Division of the Superior Court of the County of San Diego.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff
and Respondent.
On June 10, 2019, the prosecution filed a felony complaint in San Diego
Superior Court charging Thomas Salas with attempted kidnapping (Pen.
Code,1 §§ 207,subd. (a), 664), false imprisonment (§ 237, subd. (a)), and
misdemeanor annoying a child (§ 647.6, subd. (a)(1)). The prosecution also
alleged Salas suffered a prior conviction that qualified as both a prior serious
felony (§ 667, subd. (a)) and a strike prior (§ 667, subds. (b)-(i)).
A few weeks later, on June 27, 2019, the prosecution filed an amended
felony complaint, adding a second count of misdemeanor annoying a child.
On the same day, at the preliminary hearing, the court held Salas to answer
all charges in the amended felony complaint. No arraignment was held at
that time.
On July 11, 2019, the prosecution filed an amended misdemeanor
complaint wherein the felony charges and recidivist allegations were
dropped. Trial proceeded on the two misdemeanor charges only, and a jury
convicted Salas as charged.
The court placed Salas on probation.
Salas filed a misdemeanor notice of appeal, claiming substantial
evidence does not support his conviction on one of his counts. The People
filed a motion to dismiss, arguing that this court does not have jurisdiction to
hear this appeal, and the matter should be transferred to the appellate
division of the superior court. We agree and, thus, dismiss this appeal and
transfer this matter as the People suggest.
DISCUSSION2
The Sixth Appellate District in People v. Scott (2013) 221 Cal.App.4th
525 (Scott) explained the Court of Appeal’s jurisdiction to hear criminal
appeals. As that court discussed, “California Rules of Court, rule 8.304
1 Statutory references are to the Penal Code unless otherwise specified.
2 Because we do not reach the merits of Salas’s appeal, we eschew the
traditional statement of facts describing the underlying offenses.
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(hereafter rule 8.304) governs the filing of appeals in the Court of Appeal.
Subdivision (a) provides in pertinent part, ‘(1) To appeal from a judgment or
an appealable order of the superior court in a felony case . . . the defendant or
the People must file a notice of appeal in that superior court. . . . [¶] (2) As
used in (1), “felony case” means any criminal action in which a felony is
charged, regardless of the outcome. . . . [It] includes an action in which the
defendant is charged with: [¶] (A) A felony and a misdemeanor or infraction,
but is convicted of only the misdemeanor or infraction; [¶] (B) A felony, but is
convicted of only a lesser offense; or [¶] (C) An offense filed as a felony but
punishable as either a felony or a misdemeanor, and the offense is thereafter
deemed a misdemeanor under . . . section 17(b).’ ” (Scott, at p. 529, italics
omitted.)
“Similarly, section 1235, subdivision (b) provides that ‘[a]n appeal from
a judgment or appealable order in a felony case is to the court of appeal for
the district in which the court from which the appeal is taken is located.’ ”
(Scott, supra, 221 Cal.App.4th at p. 529.)
“Section 691 provides the necessary definitions. ‘ “Felony case” means a
criminal action in which a felony is charged and includes a criminal action in
which a misdemeanor or infraction is charged in conjunction with a felony.’
(§ 691, subd. (f), italics [omitted].) A ‘ “[m]isdemeanor or infraction case”
means a criminal action in which a misdemeanor or infraction is charged and
does not include a criminal action in which a felony is charged in conjunction
with a misdemeanor or infraction.’ (§ 691, subd. (g), italics [omitted].)”
(Scott, supra, 221 Cal.App.4th at p. 529.)
“The Advisory Committee comment to rule 8.304 explains that
rule 8.304 ‘makes it clear that a “felony case” is an action in which a felony is
charged regardless of the outcome of the action.’ The comment goes on to
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state, ‘[t]hus the question whether to file a notice of appeal under this rule or
under the rules governing appeals to the appellate division of the superior
court (rule 8.700 et seq.) is answered simply by examining the accusatory
pleading: if that document charged the defendant with at least one count of
felony (as defined in ... section 17(a)), the Court of Appeal has appellate
jurisdiction and the appeal must be taken under this rule even if the
prosecution did not result in a punishment of imprisonment in the state
prison. [¶] It is settled case law that an appeal is taken to the Court of
Appeal not only when the defendant is charged with and convicted of a
felony, but also when the defendant is charged with both a felony and a
misdemeanor (Pen. Code, § 691(f)) but is convicted of only the misdemeanor
[Citation]; when the defendant is charged with a felony but is convicted of
only a lesser offense [Citations]; and when the defendant is charged with an
offense filed as a felony but punishable as either a felony or a misdemeanor,
and the offense is thereafter deemed a misdemeanor under . . . section 17(b)
[Citations].” (Scott, supra, 221 Cal.App.4th at pp. 529-530.)
Here, the People argue that this matter is analogous to Scott, supra,
221 Cal.App.4th 525, and, as such, we must dismiss the appeal because we
lack jurisdiction to hear it. In contrast, Salas argues that Scott was wrongly
decided. The People have the better argument.
In Scott, following a preliminary hearing, the defendant was held to
answer on one felony count. Eight days later, the prosecution filed an
information charging the defendant with one felony and three misdemeanors.
(Scott, supra, 221 Cal.App.4th at p. 527.) Under rule 8.304, at that point, the
case became a felony case. Four days after that, however, the prosecution
moved to dismiss the felony count for insufficiency of the evidence. The court
dismissed the felony and the defendant pleaded not guilty to the three
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misdemeanors. (Scott, at pp. 527-528.) The case was subsequently set for
trial in a misdemeanor department. (Id. at pp. 528, 533, fn. 5.) On the first
day of trial, the prosecution filed a “ ‘First Amended’ misdemeanor complaint”
charging the defendant with three misdemeanor offenses. (Id. at p. 528.)
The jury found the defendant guilty as charged. (Ibid.) The defendant filed a
“ ‘Misdemeanor’ ” notice of appeal and other appellate notices using the forms
for misdemeanor appeals, but the appeal went to the Sixth Appellate
District.3 (Id. at pp. 528, 533.)
The Sixth Appellate District “questioned whether appellate jurisdiction
was vested in the [Court of Appeal ]or the appellate division of the superior
court” and asked the parties to brief the issue. (Scott, supra, 221 Cal.App.4th
at p. 528.) After reviewing section 691, rule 8.304, the Advisory Committee
comment to the rule, and the cases cited in the comment, the Sixth Appellate
District concluded that the appellate division of the superior court had
appellate jurisdiction in Scott and transferred the case to that court. (Scott,
at pp. 528-529, 534.) In determining that Scott was a misdemeanor case, the
Sixth Appellate District noted that the only felony count had been dismissed
before trial and that the defendant was charged by an “amended” complaint
with only three misdemeanors. The court explained, “[a]t this point, Scott
stood charged with misdemeanors and no felony counts. It is axiomatic that
for all intents and purposes this is a case in which Scott was not charged with
a felony. Based on . . . a close reading of the Advisory Committee comment to
rule 8.304 [and the cases cited therein], we are convinced that the ‘regardless
of the outcome’ language in rule 8.304 does not extend to cases wherein the
felony count is dismissed entirely, because in this situation there is no
3 The opinion in Scott does not explain how the appeal ended up in the
Court of Appeal and not the Appellate Division of the Superior Court.
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‘prosecution.’ ” (Id. at p. 532, italics omitted.) The court clarified that when a
pleading is amended, the amended pleading supersedes the original pleading,
which is “set aside and abandoned.” (Id. at pp. 532-533.) The court also
stated that “[t]he superior court recognized that this was a misdemeanor case
and set the trial in a misdemeanor department. Scott's trial counsel
recognized that this was a misdemeanor case and filed a misdemeanor notice
of appeal,” as well as other forms used in misdemeanor appeals. (Id. at
p. 533, fn. omitted.) Having determined that the effective pleading charged
the defendant with only three misdemeanors, the court concluded that the
appeal was not properly before it and transferred the matter to the appellate
division of the superior court. (Id. at p. 534.)
The instant matter is analogous to Scott, supra, 221 Cal.App.4th 525.
Like the defendant in Scott, Salas was charged with felony offenses and was
held to answer for all the charges in the amended charging document.
However, before trial, the prosecution filed a misdemeanor complaint against
Salas that dismissed the two felonies and the allegations concerning Salas’s
priors. In Scott, the prosecutor likewise filed an amended complaint that
only charged the defendant with misdemeanors. Thus, like the defendant in
Scott, when Salas went to trial, he could only be convicted of misdemeanors.
In other words, it was not a situation where Salas was charged with both
felonies and misdemeanors, but the jury only convicted him of a
misdemeanor. And, also like the defendant in Scott, Salas filed a
misdemeanor appeal. Simply put, this is a misdemeanor case. We disagree
with Salas that Scott was wrongly decided.
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DISPOSITION
The appeal is dismissed and transferred to the Appellate Division of
the San Diego County Superior Court.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
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